Faircloth v. United States

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

MICHAEL TERRILL FAIRCLOTH,

Petitioner,

v. Case No: 2:19-cv-269-FtM-29MRM

Case No. 2:06-CR-117-FTM-29MR

UNITED STATES OF AMERICA,

Respondent.

OPINION AND ORDER

This matter comes before the Court on petitioner Michael

Terrill Faircloth’s (Faircloth or petitioner) Motion Under 28

U.S.C. Section 2255 to Vacate, Set Aside or Correct Sentence by a

Person in Federal Custody (Cv. Doc. #1; Cr. Doc. #89; Cr. Doc.

#90)1 filed by counsel on May 13, 2019, and petitioner’s pro se

Motion Under 28 U.S.C. Section 2255 to Vacate, Set Aside or Correct

Sentence by a Person in Federal Custody (Cv. Doc. #2) filed on May

14, 2019. Petitioner’s attorney filed a Memorandum of Law (Cv.

Doc. #10) on August 5, 2019. On October 3, 2019, petitioner’s

attorney was allowed to withdraw from the case. (Cv. Doc. #15.)

The government filed a Response in Opposition (Cv. Doc. #16) on

1 The Court will refer to the docket of the civil habeas case as

“Cv. Doc.”, and will refer to the docket of the underlying criminal

case as “Cr. Doc.”

October 4, 2019, to which petitioner filed a pro se Reply (Cv.

Doc. #19) on December 9, 2019.

Petitioner is in the unusual position of urging the Court to

vacate his sentence so it may impose a more severe sentence.

Petitioner was originally sentenced as an armed career offender to

120 months imprisonment, followed by five years of supervised

release. Before petitioner completed that sentence, he escaped;

when captured, petitioner was found in possession of a firearm.

This led to two new federal criminal cases, which ultimately

resulted in convictions. After serving about nine years of the

120 month sentence, but before being convicted and sentenced on

the new federal offenses, petitioner filed his first § 2255 motion

claiming he was not an armed career offender under recent Supreme

Court cases. The Court agreed, set a re-sentencing hearing, and

ultimately re-sentenced petitioner to 41 months imprisonment, with

no supervised release to follow. By the time petitioner was re-

sentenced, he had completely served the original 120-month term of

imprisonment (but not the supervised release term).

Petitioner asserts that the federal Bureau of Prisons refuses

to credit his “overserved” time (i.e., the difference between the

120 months he actually served and the 41 months he was re-sentenced

to serve) on either of petitioner’s two new federal sentences.

Petitioner further asserts that the Bureau of Prisons would give

him such credit if the Court had imposed a term of supervised

release at re-sentencing. Petitioner therefore argues that the

Court erred in failing to impose a term of supervised release, and

his attorney provided ineffective assistance of counsel by failing

to request the Court to do so. Petitioner seeks to be re-sentenced

to 41 months imprisonment, plus a three year term of supervised

release, and requests that the Court order the Bureau of Prisons

to give him credit for the over-service of his original sentence.

(Cv. Doc. #10, pp. 10-11.)

I.

A. Procedural History of Current Case

On October 25, 2006, a federal grand jury in Fort Myers,

Florida returned a one-count Indictment (Cr. Doc. #1) charging

Faircloth with being a felon in possession of ammunition (the

Ammunition Case). In due course defendant entered a plea of guilty

pursuant to a Plea Agreement. (Cr. Docs. #39, 41.)

According to the Presentence Report, defendant qualified

under the Armed Career Criminal Act (ACCA), resulting in a

Sentencing Guideline range of 180 to 210 months imprisonment.

(Cr. Doc. #72, p. 33.) At the September 24, 2007 sentencing, the

Court granted a four-level reduction based on the government’s

substantial assistance motion (Cr. Doc. #54), which resulted in a

Sentencing Guidelines range of 120 to 150 months imprisonment.

Petitioner was sentenced to 120 months of imprisonment, followed

by a term of 60 months supervised release. (Cr. Docs. #51, 53.)

Defendant did not file a direct appeal.

About nine years later, on March 18, 2016, defendant filed a

motion pursuant to 28 U.S.C. § 2255 asserting that in light of the

intervening decisions of Johnson v. United States, 135 S. Ct. 2551

(2015) and Welch v. United States, 136 S. Ct. 1257 (2016) he did

not qualify under the ACCA. (Cr. Doc. #61.) On July 15, 2016,

the Court issued an Opinion and Order (Cr. Doc. #62) finding the

ACCA no longer applied to defendant, and setting the case for a

full resentencing.

On September 13, 2016, petitioner through counsel filed a

Motion to Withdraw Plea. (Cr. Doc. #67.) On October 19, 2016, the

Court denied the motion because it would prejudice the government.

(Cr. Doc. #71.)

Under the new Sentencing Guideline calculations, petitioner’s

range was 51 to 63 months imprisonment. (Cr. Doc. #72, pp. 1-2.)

At the December 5, 2016, resentencing, the government continued to

ask for the four-level reduction based upon substantial

assistance. The Court granted petitioner a four level reduction

in the total offense level which, coupled with petitioner’s

Category VI criminal history, resulted in a Sentencing Guidelines

range of 33 to 41 months imprisonment, followed by supervised

release of between one and three years. (Cr. Doc. #84, pp. 20.)

Defense counsel asserted that imposition of supervised release was

discretionary, not mandatory. (Id. at 20-21.) Defense counsel

requested a sentence at the low end of the Sentencing Guidelines

range, without imposition of a term of supervised release because

of petitioner’s two pending federal cases for which supervised

release would be available. (Id. at 21.) The Probation Office

took the position that a term of supervised release was mandatory.

(Id. at 24.)

Relying on 18 U.S.C. § 3583(a), the Court found that

supervised release was not mandatory, and declined to impose a

term of supervised release. (Id. at 25-26.) The Court imposed a

sentence of 41 months imprisonment in order to give petitioner

credit for his substantial assistance. (Id. at 29-30.) The Court

declined to decide whether petitioner could “bank” or receive

credit for any portion of the 120 month prior sentence which was

over-served. (Id. at 30-31.) Judgment (Cr. Doc. #79) was filed

on December 6, 2016.

Defendant had, of course, already served more than 41 months

imprisonment. According to the Bureau of Prisons, a 41-month term

would have been completed on April 21, 2009; petitioner had

1

completed the 120-month prison term on January 14, 2015. (Cv.

Doc. #16, p. 5.)

1

Defendant was not released because, as discussed in more detail

in a moment, he had been indicted on March 14, 2014, for escape

and indicted on July 9, 2014, for being a felon in possession of

a firearm. On March 13, 2015, petitioner filed a motion under 28

Defense counsel filed a Notice of Appeal (Cr. Doc. #81) and

on appeal challenged the Court’s denial of petitioner’s motion to

withdraw his guilty plea. The Eleventh Circuit affirmed the

conviction and sentence on October 18, 2017. (Cr. Doc. #87);

United States v. Faircloth, 712 F. App'x 887 (11th Cir. 2017).

Petitioner’s pro se petition for certiorari was denied on May 14,

2018. Faircloth v. United States, 138 S. Ct. 2012 (2018).

B. Procedural History of Intervening Prosecutions

As part of the original incarceration on the Ammunition Case,

petitioner was released to a halfway house in Miami, Florida. On

or about February 12, 2014, petitioner left the halfway house

without permission and was deemed to have escaped. On March 14,

2014, petitioner was indicted in the Southern District of Florida

for Escape (the Escape Case). (Cv. Doc. #10, ¶ 2; Cv. Doc. #16,

p. 4.)

On May 21, 2014, petitioner was arrested on the Escape Case

at his residence in Cape Coral, Florida, where he was found with

a loaded firearm on his person. (Cv. Doc. #10, ¶ 3; Cv. Doc. #16,

p. 4.) On July 9, 2014, petitioner was indicted in the Middle

U.S.C. § 2241 asserting that he had already served his 120 month

sentence, and seeking his immediate release or transfer to the

Southern District to answer on the escape charge. (Id., p. 2.)

On November 14, 2016, the Section 2241 motion was dismissed without

prejudice as moot because the resentencing hearing had already

been scheduled, or alternatively, for failure to prosecute. See

Faircloth v. United States, 2:15-cv-168-FTM-29MRM, Doc. #12 (M.D.

Fla. Nov. 14, 2016).

District of Florida for Possession of a Firearm and Ammunition by

a Convicted Felon (the Firearm Case) based on the loaded firearm

found at the time of his arrest on the Escape Case. (Cv. Doc.

#16, p. 4.)

On January 28, 2016, petitioner was found guilty by a jury on

the Firearm Case in the Middle District of Florida. See United

States v. Faircloth, 2:14-cr-76-FTM-38MRM, Doc. #161. On June 19,

2017, petitioner was sentenced to 120 months of imprisonment,

consecutive to the sentence to be imposed for the escape. (Cv.

Doc. #10, ¶ 4; 2:14-cr-76-FTM-38MRM, Doc. #227.) This conviction

and sentence were affirmed on direct appeal. United States v.

Faircloth, 770 Fed. Appx. 976, 977 (11th Cir. 2019). The Supreme

Court denied certiorari on March 2, 2020. Faircloth v. United

States, 140 S. Ct. 1273 (2020).

On August 16, 2017, petitioner was sentenced on the escape

charge to 27 months of imprisonment, to run consecutive to the 41-

month term imposed in the Ammunition Case. (Cv. Doc. #16, p. 5.)

II.

Petitioner and his former counsel raise several grounds for

relief in their respective § 2255 motions. The Court summarizes

each ground.

A. Ground One

In his pro se Ground One, petitioner phrases the issue as one

of ineffective assistance of counsel. Petitioner asserts that his

attorney failed to use due diligence to ascertain whether or not

a term of supervised release was necessary to ensure he would

receive time-served credit for the over-served sentence.

Petitioner asserts that his attorney was twice given untrue

information by a sentencing specialist with the Bureau of Prisons,

but faults counsel for not verifying the information. (Cv. Doc.

#2, p. 4.)

In the Ground One in counsel’s § 2255 Motion, counsel phrases

the issue as being trial court error. Specifically, counsel

argues that the trial court erred in not imposing a term of

supervised release upon re-sentencing, which prevented

petitioner’s sentence from being aggregated with his new sentences

because his original sentence had already expired. Imposition of

a supervised release term would have meant petitioner’s sentence

in the instant case had not expired, and the Bureau of Prisons

would be able to aggregate his consecutive sentences and provide

credit for the over-served time. (Cv. Docs. #1, p. 4; #10, pp.

5-7.)

B. Ground Two

In Ground Two of petitioner’s pro se § 2255 motion he asserts

that his attorney provided ineffective assistance of counsel by

failing to seek a writ of certiorari from the Supreme Court, as

petitioner had requested him to do. (Cv. Doc. #2, p. 5.)

In Ground Two of counsel’s § 2255 motion counsel asserts that

former counsel provided ineffective assistance by failing to bring

to the Court’s attention that a term of supervised release which

extended beyond the date of resentencing was required in order for

the new consecutive sentences to be aggregated and petitioner to

receive credit for the over-service of his prior sentence. (Cv.

Doc. #2, pp. 5-6.)

C. Ground Three

In Ground Three of petitioner’s pro se § 2255 motion he

asserts that his attorney provided ineffective assistance of

counsel because petitioner received “zero” credit at the re-

sentencing for his assistance to the government, in violation of

his Plea Agreement. Petitioner also asserts that the Bureau of

Prison is not giving him any credit for the over-service, which

effectively constitutes a breach of the Plea Agreement, which his

attorney failed to preserve, object to, or appeal. (Cv. Doc. #2,

p. 7.)

In Ground Three of counsel’s § 2255 motion counsel asserts

that trial counsel provided ineffective assistance of counsel by

failing to research and properly advise petitioner regarding

whether his consecutive sentences would be aggregated, when he

would be eligible for release from prison, the total length of his

sentences, and the impact resentencing would have on time already

served. (Cv. Doc. #1, p. 7.)

D. Ground Four

In Ground Four petitioner asserts that he instructed his

attorney to file a notice of appeal from the re-sentencing, but

his attorney failed to do so. (Cv. Doc. #10, p. 10.)

E. Ground Added in Reply

In his pro se Reply (Cv. Doc. #19), petitioner raises the

additional claim that the Indictment in the instant case was

defective under recent Supreme Court authority, and therefore the

district court had no jurisdiction over the case.

III.

The Court first addresses some preliminary procedural

matters.

A. Timeliness of Motion/Cognizability

Petitioner has filed two versions of his current § 2255

motion. Petitioner filed a pro se § 2255 motion on May 14, 2019,

which had been signed on May 9, 2019. The other motion was signed

and filed by counsel on May 13, 2019. The government concedes

that the § 2255 motions were timely filed (Cv. Doc. #16, pp. 8-

9), and the Court agrees.

The government also concedes that the issues raised by

petitioner are cognizable under § 2255. (Cv. Doc. #16, pp. 12-

13.) Again, the Court agrees.

B. Lack of Jurisdiction – “In Custody” Requirement

The government asserts that the § 2255 motions should be

dismissed because petitioner was not “in custody” at the time he

filed the § 2255 motions, as required by the statute. (Cv. Doc.

#16, pp. 9-10.) For the reasons set forth below, the Court

disagrees.

“A prisoner in custody under sentence of a court established

by Act of Congress claiming the right to be released” on certain

types of grounds “may move the court which imposed the sentence to

vacate, set aside or correct the sentence.” 28 U.S.C. § 2255(a).

Whether a prisoner is “in custody” is measured at the time he or

she files the § 2255 motion. Carafas v. LaVallee, 391 U.S. 234,

238 (1968)(“The federal habeas corpus statute requires that the

applicant must be ‘in custody’ when the application for habeas

corpus is filed.”)

Although the phrase “in custody” is construed broadly, the

Supreme Court has stressed that a habeas petitioner cannot satisfy

that requirement if he “suffers no present restraint from” the

conviction he seeks to challenge. Garlotte v. Fordice, 515 U.S.

39, 45 (1995); Maleng v. Cook, 490 U.S. 488, 492 (1989). Two

Supreme Court cases are relevant. In Peyton v. Rowe, 391 U.S. 54,

67 (1968), the Supreme Court held that a district court may

entertain a habeas petition from a prisoner incarcerated under

consecutive sentences when the prisoner claims that a sentence he

is scheduled to serve in the future is unconstitutional. In

Garlotte v. Fordice, the Supreme Court addressed what it described

as “Peyton in reverse.” Garlotte entered simultaneous guilty pleas

in state court and was sentenced to three years' imprisonment for

a drug charge, to be followed by concurrent life sentences for

murder convictions. 515 U.S. at 41–42. Although Garlotte had

completed the three-year drug term and had begun serving the life

sentences for the murder charge, the Supreme Court allowed his

habeas petition, which challenged the validity of the drug

conviction. The Supreme Court concluded that “a prisoner serving

consecutive sentences is ‘in custody’ under any one of them for

purposes of the habeas statute.” Id. at 45–46 (quoting Peyton, 391

U.S. at 67). The Court focused on the “core purpose of habeas

review,” noting that Garlotte's challenge would shorten his term

of incarceration if he was successful. Id. at 47.

Here, in May 2019, when petitioner filed his § 2255 motions,

he was literally “in custody,” but in federal custody based upon

the Firearm Case, not the Ammunition Case in which he now seeks §

2255 relief. If petitioner’s claims are correct, he suffers a

present restraint from the Ammunition Case.

In May, 2019, petitioner had completely served all components

of his sentence in the Ammunition Case, but was serving sentences

in two federal cases, both of which were imposed to be served

2

consecutively to the Ammunition Case. Petitioner asserts that

if he prevails in this § 2255 proceeding, he will be released from

prison earlier on the Firearm Case and the Escape Case because the

Bureau of Prisons will aggregate the three sentences and

effectively credit the over-served time from the Ammunition Case.

If successful, petitioner will advance his release date, which is

sufficient to permit a § 2255 motion. Peyton, 391 U.S. at 66-67.

Under these circumstances, the Court finds petitioner was “in

custody” for purposes of § 2255 at the time he filed his § 2255

motions.

C. Mootness

The government also asserts that the § 2255 motions should be

dismissed as moot because petitioner has served his entire sentence

in the Ammunition Case. (Cv. Doc. #16, pp. 10-12.) Given the

nature of petitioner’s claims, the Court disagrees.

A federal court’s jurisdiction is limited to “Cases” and

“Controversies.” U.S. Const. art. III, § 2, cl. 1. A case or

controversy becomes moot when it no longer presents a live

controversy with respect to which the court can give meaningful

relief. United States v. Al-Arian, 514 F.3d 1184, 1189 (11th Cir.

2008). A sentencing issue is moot when the defendant has already

2

The Escape Case sentence was expressly to be served consecutively

to the sentence in the Ammunition Case. The Firearm Case was

expressly to be served consecutively to the Escape Case sentence.

served his complete sentence, unless the defendant demonstrates

some sufficient “collateral consequences” flowing from the

sentence imposed. Spencer v. Kemna, 523 U.S. 1, 3, 14–17 (1998).

Since it is undisputed that petitioner has already served the

entire sentence imposed in the Ammunition Case, he no longer

automatically satisfies Article III’s “case-or-controversy”

requirement. Rather, petitioner bears the burden of showing that

he still suffers some sufficient collateral consequence from the

Ammunition Case sentence. Spencer v. Kemna, 523 U.S. at 7, 14.

The § 2255 motions are not moot. It is undisputed that

petitioner has not received credit for his “overservice” of the

sentence from the Ammunition Case. Petitioner has sufficiently

shown the existence of a sufficient collateral consequence of the

Ammunition Case that survives the full service of his sentence,

i.e., if petitioner’s position is correct, the Ammunition Case

adversely impacts the actual time petitioner will serve in custody

on the Firearm Case and the Escape Case. Additionally, “[b]ecause

success for [petitioner] could alter the supervised release

portion of his sentence, his appeal is not moot.” Dawson v. Scott,

50 F.3d 884, 886 (11th Cir. 1995).

D. Procedural Default

The government argues that petitioner procedurally defaulted

his claims by not arguing on direct appeal that he should have

received a term of supervised release. (Cv. Doc. #16, pp. 13-14.)

The Court finds there is no procedural default which allows the

Court to avoid the issues raised in the § 2255 motions.

Under the procedural default doctrine, a defendant must raise

any available challenge to a criminal conviction or sentence on

direct appeal, or otherwise be precluded from presenting those

claims in a federal § 2255 proceeding. McKay v. United States,

657 F.3d 1190, 1196 (11th Cir. 2011). There are two exceptions to

the procedural default rule: (1) where a defendant can show cause

for the default and actual prejudice from the error; and (2) when

there has been a miscarriage of justice, also known as the “actual

innocence” exception. Id. A meritorious claim of ineffective

assistance of counsel may constitute cause for a procedural

default. Murray v. Carrier, 477 U.S. 478, 488 (1986); United

States v. Nyhuis, 211 F.3d 1340, 1344 (11th Cir. 2000).

Petitioner’s ineffective assistance of counsel claims are not

themselves procedurally defaulted. Massaro v. United States, 538

U.S. 500, 504 (2003). The underlying substantive issue regarding

the need to impose a term of supervised release is inextricably

intertwined with most of the ineffective assistance of counsel

claims, and the Court must resolve that issue to resolve these

ineffective assistance claims.

E. Unavailable Relief: Order to Bureau of Prisons

Both petitioner and his former counsel ask the Court to

utilize this § 2255 proceeding to order the Bureau of Prisons to

give petitioner the credit for the over-served time. Former

counsel argues that the Bureau of Prisons has erred by finding

petitioner was not in custody for purposes of aggregating his

sentence, and asks the Court to “remedy that error.” (Cv. Doc.

#10, pp. 6-7.) Petitioner asks the Court to order the Bureau of

Prisons to give him full credit, or to allow a new plea agreement

which guarantees the Bureau of Prison will give him full credit.

(Cv. Doc. #2, p. 13.) Neither form of relief is available to

petitioner even if he prevails in this § 2255 proceeding.

A challenge to the service of a sentence (as distinguished

from a challenge to the validity of a sentence) must be brought

pursuant to 28 U.S.C. § 2241, not pursuant to § 2255. Antonelli

v. Warden, U.S.P. Atlanta, 542 F.3d 1348, 1352 (11th Cir. 2008)

(challenges to the execution of a sentence, rather than the

validity of the sentence itself, are properly brought under §

2241). In such a proceeding, the applicable law is well-settled,

as the Eleventh Circuit has recently stated:

Under 18 U.S.C. § 3585(b), “[a] defendant

shall be given credit” for time served in

official detention “that has not been credited

against another sentence.” But in United

States v. Wilson, 503 U.S. 329, 112 S. Ct.

1351, 117 L. Ed. 2d 593 (1992), the Supreme

Court held that Ҥ 3585(b) does not authorize

a district court to compute the credit at

sentencing.” Id. at 334, 112 S. Ct. at 1354.

Instead, the Attorney General, acting through

the Bureau of Prisons (“BOP”), is responsible

for initially calculating credit for time

served. See id. at 334–35, 112 S. Ct. at 1355–

56; see also United States v. Alexander, 609

F.3d 1250, 1259–60 (11th Cir. 2010).

This Court has clarified that “prisoners may

seek judicial review of the [time-served]

calculation only after exhausting

administrative remedies.” Alexander, 609 F.3d

at 1259–60. That is, to seek credit for time

served, a prisoner must first use the BOP’s

formal process for filing a complaint. See

United States v. Lucas, 898 F.2d 1554, 1556

(11th Cir. 1990) (per curiam) (citing 28

C.F.R. §§ 542.10–.16). Only after the BOP has

issued a decision may a prisoner seek judicial

review of that administrative action. See id.

at 1555. The federal courts lack jurisdiction

over requests for custody-credit that were not

first asserted before the BOP. See id. at

1555–56.

United States v. Coates, 775 F. App’x 669, 670–71 (11th Cir. 2019).

The Court recognized this at the sentencing proceeding, and

declined to resolve the issue of credit for time served, deferring

to the Bureau of Prisons. (Cr. Doc. #84, pp. 30-31.) Thus, even

if petitioner is correct in his § 2255 issues, appropriate relief

does not include an order to the Bureau of Prisons as to how to

give petitioner credit on his sentences.

IV.

Most of the remaining issues are phrased in terms of

ineffective assistance of counsel claims. The Court will set

forth those legal principles, and then discuss the specific issues

raised by petitioner.

A. Ineffective Assistance of Counsel Standards

The legal standard for ineffective assistance of counsel

claims in a habeas proceeding is well established. To prevail on

a claim of ineffective assistance of counsel, a habeas petitioner

must demonstrate both that (1) counsel's performance was deficient

because it fell below an objective standard of reasonableness and

(2) prejudice resulted because there is a reasonable probability

that, but for the deficient performance, the result of the

proceeding would have been different. See Hinton v. Alabama, 571

U.S. 263, 272-73 (2014) (citing Strickland v. Washington, 466 U.S.

668, 687, 694 (1984) and Padilla v. Kentucky, 559 U.S. 356, 366

(2010)). “Because a petitioner's failure to show either deficient

performance or prejudice is fatal to a Strickland claim, a court

need not address both Strickland prongs if the petitioner fails to

satisfy either of them.” Kokal v. Sec'y, Dep't of Corr., 623 F.3d

1331, 1344 (11th Cir. 2010) (citations omitted).

The proper measure of attorney performance is “simply

reasonableness under prevailing professional norms” considering

all the circumstances. Hinton, 571 U.S. at 273 (internal

quotations and citations omitted). “A fair assessment of attorney

performance requires that every effort be made to eliminate the

distorting effects of hindsight, to reconstruct the circumstances

of counsel's challenged conduct, and to evaluate the conduct from

counsel's perspective at the time.” Strickland, 466 U.S. at 689;

see also Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000) (stating

courts must look to the facts at the time of counsel’s conduct).

This judicial scrutiny is highly deferential, and the Court adheres

to a strong presumption that counsel’s conduct falls within the

wide range of reasonable professional assistance. See Strickland,

466 U.S. at 689-90.

To be objectively unreasonable, the performance must be such

that no competent counsel would have taken the action. See Rose

v. McNeil, 634 F.3d 1224, 1241 (11th Cir. 2011); see also Hall v.

Thomas, 611 F.3d 1259, 1290 (11th Cir. 2010). Additionally, an

attorney is not ineffective for failing to raise or preserve a

meritless issue. See United States v. Winfield, 960 F.2d 970, 974

(11th Cir. 1992); see also Ladd v. Jones, 864 F.2d 108, 109-10

(11th Cir. 1989).

The same deficient performance and prejudice standards apply

to appellate counsel. See Smith v. Robbins, 528 U.S. 259, 285-86

(2000); see also Roe, 528 U.S. at 476-77. If the Court finds

there has been deficient performance, it must examine the merits

of the claim omitted on appeal. If the omitted claim would have

had a reasonable probability of success on appeal, then the

deficient performance resulted in prejudice. See Joiner v. United

States, 103 F.3d 961, 963 (11th Cir. 1997). Counsel is not

deficient for failing to raise non-meritorious claims on direct

appeal. See Diaz v. Sec’y for the Dep’t of Corr., 402 F.3d 1136,

1144-45 (11th Cir. 2005).

B. Specific Grounds Asserted in §2255 Motions

The Court addresses each of the grounds asserted by petitioner

or his attorney in the § 2255 motions, although not in the same

order as set forth in the § 2255 motions.

(1) Failure to File Notice of Appeal

Petitioner asserts that his attorney provided ineffective

assistance of counsel because he failed to file a notice of appeal

after his re-sentencing, as petitioner instructed him to do. (Cv.

Doc. #10, p. 10.)

The Eleventh Circuit recently summarized the pertinent legal

principles:

“In order to prevail on his claim that counsel

was constitutionally ineffective for failing

to file an appeal, [Rios] must show that

counsel’s performance was deficient and that

this deficiency prejudiced him.” Thompson, 504

F.3d at 1206; Roe v. Flores-Ortega, 528 U.S.

470, 476–77, 120 S. Ct. 1029, 145 L. Ed. 2d

985 (2000) (holding that the test from

Strickland v. Washington, 466 U.S. 668, 104 S.

Ct. 2052, 80 L.Ed.2d 674 (1984), applies to

claims that a lawyer was ineffective for

failing to file an appeal).

A § 2255 movant can meet this test in two ways.

First, he can show that counsel disregarded a

specific instruction to file a notice of

appeal. Flores-Ortega, 528 U.S. at 477, 120 S.

Ct. 1029 (“We have long held that a lawyer who

disregards specific instructions from the

defendant to file a notice of appeal acts in

a manner that is professionally

unreasonable.”). Counsel’s performance in

these circumstances is per se deficient

because “the decision to appeal rests with the

defendant.” Id. at 479, 120 S. Ct. 1029.

Moreover, prejudice is presumed when counsel’s

deficient performance deprives a defendant of

an appeal that he otherwise would have taken.

Garza v. Idaho, U.S. , 139 S. Ct. 738,

744, 203 L. Ed. 2d 77 (2019).

Second, a § 2255 movant can show that counsel

failed to adequately consult with him about an

appeal and that, had he received reasonable

advice from counsel about the appeal, he would

have instructed his counsel to file an appeal.

Flores-Ortega, 528 U.S. at 478, 484, 486, 120

S. Ct. 1029; see Thompson, 504 F.3d at 1206

(“[A]dequate consultation requires informing

a client about his right to appeal, advising

the client about the advantages and

disadvantages of taking an appeal, and making

a reasonable effort to determine whether the

client wishes to pursue an appeal, regardless

of the merits of such an appeal.”). To prove

deficient performance under this route, the

movant must show that counsel had a

“constitutionally imposed duty to consult.”

Flores-Ortega, 528 U.S. at 480, 120 S. Ct.

1029. Counsel has a duty to consult when (1)

a rational defendant would want to appeal; or

(2) the particular defendant reasonably

demonstrated an interest in appealing.

Thompson, 504 F.3d at 1207. In making this

determination, courts must take into account

all the information counsel knew or should

have known. Flores-Ortega, 528 U.S. at 480,

120 S. Ct. 1029. While there is no “bright-

line rule” that counsel must always consult

with a defendant regarding an appeal, the

Supreme Court has recognized that counsel will

have a duty to consult “in the vast majority

of cases.” Id. at 480–81, 120 S. Ct. 1029.

Rios v. United States, 783 F. App’x 886, 890–91 (11th Cir. 2019)

(footnote omitted).

Here, the record clearly establishes that counsel did file a

Notice of Appeal after the re-sentencing. (Cr. Doc. #81.) The

Eleventh Circuit affirmed. United States v. Faircloth, 712 F.

App'x 887 (11th Cir. 2017). Therefore, petitioner’s claim is

without merit.

(2) Failure to File Petition for Writ of Certiorari

Petitioner asserts that his attorney provided ineffective

assistance by failing to file a petition for writ of certiorari

with the United States Supreme Court, as petitioner instructed.

(Cv. Doc. #2, p. 5.) Petitioner filed such a petition pro se,

which was denied.

While a criminal defendant has a constitutional and statutory

right to counsel in a direct appeal, a criminal defendant does not

have a constitutional right to counsel to pursue discretionary

review. Ross v. Moffitt, 417 U.S. 600, 617-18 (1974) (appointment

of counsel for indigent state defendants not required for

applications for writ of certiorari with the Supreme Court);

Pennsylvania v. Finley, 481 U.S. 551, 555 (1987)(“Our cases

establish that the right to appointed counsel extends to the first

appeal of right, and no further.”); Austin v. United States, 513

U.S. 5, 8 (1994). Review by the Supreme Court pursuant to a writ

of certiorari is discretionary. 28 U.S.C. § 1254. Since

petitioner had no constitutional right to counsel, he could not be

deprived of the effective assistance of counsel by his counsel's

failure to file an application for discretionary review.

Wainwright v. Torna, 455 U.S. 586, 587–88 (1982). Additionally,

petitioner cannot establish prejudice because a petition for

certiorari was filed and the Supreme Court declined to hear the

case. Faircloth v. United States, 138 S. Ct. 2012, 201 L. Ed. 2d

267 (2018). This ground is denied.

(3) Failure to Obtain Credit For Substantial Assistance

Petitioner asserts that his attorney provided ineffective

assistance of counsel because counsel did not object when

petitioner failed to receive any credit for substantial assistance

at the re-sentencing, contrary to the provisions of the Plea

Agreement. (Cv. Doc. #2, p. 7.)

The record establishes that petitioner’s claim is without

merit. The Plea Agreement did not compel a benefit for substantial

assistance, but only required the government to make a motion with

the court seeking such a benefit on petitioner’s behalf. (Cr.

Doc. #39, pp. 4-5.) More importantly, the record clearly

establishes that at re-sentencing the government continued to

request a four-level reduction for substantial assistance (Cr.

Doc. #84, p. 18), and petitioner did receive credit for substantial

assistance. The sentencing court had initially misspoke, imposing

a sentence of 63 months imprisonment. (Id. at 23-24.) When this

was pointed out, the Court imposed a sentence of 41 months

imprisonment in order to give petitioner credit for the substantial

assistance. (Id. at 29-30.)

(4) Whether Supervised Release Term Was Required

The crux of the motions is that the Court was required to

impose a term of supervised release upon re-sentencing, and erred

by failing to do so. (Cv. Docs. #10, pp. 8-9.)

The controlling statute, 18 U.S.C. § 3583(a), provides:

The court, in imposing a sentence to a term of

imprisonment for a felony or a misdemeanor,

may include as a part of the sentence a

requirement that the defendant be placed on a

term of supervised release after imprisonment,

except that the court shall include as a part

of the sentence a requirement that the

defendant be placed on a term of supervised

release if such a term is required by statute

or if the defendant has been convicted for the

first time of a domestic violence crime as

defined in section 3561(b).

18 U.S.C. § 3583. Thus, under Section 3583(a) a term of supervised

release is permissive, not mandatory, unless supervised release is

required by statute or if defendant is a first-time domestic

violence offender. Obviously, the domestic violence provision

does not apply to this case. The government states there is no

statute making imposition of a term of supervised release mandatory

in this case (Cv. Doc. #16, p. 15), and the Court agrees.

Petitioner’s former counsel relies upon a provision of the

Sentencing Guidelines (Cv. Doc. #10, p. 8), which obviously is not

a statute. Additionally, the cited Sentencing Guidelines

provision does not make imposition of a term of supervised release

mandatory.

Sentencing Guidelines § 5D1.1(a) and (b) provide in pertinent

part:

(a) The court shall order a term of supervised

release to follow imprisonment--

(1) when required by statute (see 18

U.S.C. § 3583(a)); or

(2) except as provided in subsection (c),

when a sentence of imprisonment of more

than one year is imposed.

(b) The court may order a term of supervised

release to follow imprisonment in any other

case. See 18 U.S.C. § 3583(a).

U.S. Sentencing Guideline Manual § 5D1.1(a), (b). The Application

Note for Subsection (a) states:

Under subsection (a), the court is required to

impose a term of supervised release to follow

imprisonment when supervised release is

required by statute or, except as provided in

subsection (c), when a sentence of

imprisonment of more than one year is imposed.

The court may depart from this guideline and

not impose a term of supervised release if

supervised release is not required by statute

and the court determines, after considering

the factors set forth in Note 3, that

supervised release is not necessary.

U.S. Sentencing Guidelines Manual § 5D1.1 cmt. n.1. The factors

set forth in Note 3 are:

(A) Statutory Factors.--In determining

whether to impose a term of supervised

release, the court is required by statute to

consider, among other factors:

(i) The nature and circumstances of the

offense and the history and characteristics of

the defendant;

(ii) The need to afford adequate deterrence to

criminal conduct, to protect the public from

further crimes of the defendant, and to

provide the defendant with needed educational

or vocational training, medical care, or other

correctional treatment in the most effective

manner;

(iii) The need to avoid unwarranted sentence

disparities among defendants with similar

records who have been found guilty of similar

conduct; and

(iv) The need to provide restitution to any

victims of the offense.

U.S. Sentencing Guidelines Manual § 5D1.1, cmt. n.3. “Although

the sentencing guidelines call for supervised release in all

remaining cases with a prison sentence of more than one year (with

limited exceptions), see U.S. Sentencing Guidelines Manual §

5D1.1(a)(2), the Supreme Court made the relevant provisions of the

guidelines discretionary in 2005. See United States v. Booker, 543

U.S. 220, 245, 125 S. Ct. 738, 160 L.Ed.2d 621 (2005); United

States v. Parker, 508 F.3d 434, 442 (7th Cir. 2007).” United

States v. Kappes, 782 F.3d 828, 837 (7th Cir. 2015).

Here, the Court exercised its discretion and, given the

circumstances of the case, agreed with defense counsel that a term

of supervised release should not be imposed. This was not error,

contrary to petitioner’s current position.

(5) Ineffective Assistance Re: Supervised Release Term

Even though supervised release was not required, petitioner’s

attorney may have provided ineffective assistance by failing to

request imposition of a term of supervised release. While perhaps

counterintuitive, petitioner asserts his attorney should have

asked for a more severe sentence (i.e., the imposition of a term

of supervised release) in order to ensure that the Bureau of

Prisons gave him full credit for the over-served time from the

Ammunition Case.

The record establishes there was no ineffective assistance of

counsel. Petitioner concedes that his attorney made at least two

inquiries of a specialist with the Bureau of Prisons concerning

the subject of supervised release. While petitioner claims his

attorney received incorrect information both times, the attorney

cannot be faulted for that. Even now the parties dispute whether

the Bureau of Prisons would give petitioner the credit he seeks if

a term of supervised release had been imposed. Petitioner and his

former counsel rely from a snippet in what appears to be Bureau of

Prisons case notes to infer that credit would have been given if

supervised release had been imposed. (Cv. Doc. #1-1; Cv. Doc.

#10, p. 7.) The government argues that petitioner would not

receive credit even if supervised release had been imposed. (Cv.

Doc. #16, pp. 18-19.)

(6) Validity of Indictment

Petitioner adds a new issue in his reply memorandum, asserting

that in light of Rehaif v. United States, 139 S. Ct. 2191 (2019),

the Indictment did not contain an essential element of the charged

offense and the Court therefore lacked jurisdiction over him.

Petitioner is incorrect.

The Supreme Court clarified in Rehaif that, “in a prosecution

under 18 U.S.C. § 922(g) and § 924(a)(2), the Government must prove

both that the defendant knew he possessed a firearm and that he

knew he belonged to the relevant category of persons barred from

possessing a firearm.” United States v. Reed, 941 F.3d 1018, 1020

(11th Cir. 2019) (quoting Rehaif, 139 S. Ct. at 2200). The

Indictment (Doc. #1) in this case did allege that defendant was a

convicted felon, but only alleged “knowing” possession of

ammunition. Defendant asserts that the Indictment does not state

a federal offense because it omits this now-required knowledge-

of-status element, fails to track the statute or statutory

language, and fails to contain a required reference to 18 U.S.C.

§ 924(a)(2).

Rehaif “did not announce a “new rule of constitutional law,”

In re Palacios, 931 F.3d 1314, 1315 (11th Cir. 2019), and the

Supreme Court did not make Rehaif retroactive to cases on

collateral review. In re Wright, 942 F.3d 1063 (11th Cir. 2019).

Even if retroactive, the Eleventh Circuit has held that a Rehaif

defect does not result in a lack of subject matter jurisdiction.

United States v. Moore, 954 F.3d 1322, 1332 (11th Cir. 2020);

United States v. McLellan, 18-13289, 2020 WL 2188875, at *5 (11th

Cir. May 6, 2020). Contrary to defendant’s arguments, the

Indictment is not otherwise insufficient on its face. “So long

as the conduct described in the indictment is a criminal offense,

the mere omission of an element does not vitiate jurisdiction.”

Moore, at 1336.

Under Rehaif, petitioner established plain errors in the

Indictment. However, petitioner would have to “show a reasonable

probability that, but for the error, the outcome of the proceeding

would have been different.” Molina-Martinez v. United States, 136

S. Ct. 1338, 1343 (2016) (citation and internal quotation marks

omitted). Under the factual basis of the Plea Agreement (Cr. Doc.

#39), petitioner admitted to having had 11 prior felony offenses.

A review of the Presentence Report reflects a Criminal History

Score of 22, establishing petitioner as a Criminal History Category

of VI. At resentencing, defendant remained a Category VI. (Cr.

Doc. #69.) Much like Reed, petitioner had a prior felon in

possession of a firearm conviction as far back as 1979, and the

record therefore established that petitioner knew he was a felon,

and “he cannot prove that the errors affected his substantial

rights or the fairness, integrity, or public reputation of his

trial.” United States v. Reed, 941 F.3d 1018, 1022 (11th Cir.

2019).

Accordingly, it is hereby

ORDERED AND ADJUDGED:

1. Petitioner’s Motion Under 28 U.S.C. Section 2255 to

Vacate, Set Aside or Correct Sentence by a Person in

Federal Custody (Cv. Doc. #1; Cr. Doc. #89; Cr. Doc.

#90) is DENIED.

2. The Clerk of the Court shall enter judgment accordingly

and close the civil file. The Clerk is further directed

to place a copy of the civil Judgment in the criminal

file.

IT IS FURTHER ORDERED:

A CERTIFICATE OF APPEALABILITY (COA) AND LEAVE TO APPEAL IN

FORMA PAUPERIS ARE DENIED. A prisoner seeking a writ of habeas

corpus has no absolute entitlement to appeal a district court’s

denial of his petition. 28 U.S.C. § 2253(c)(1); Harbison v. Bell,

556 U.S. 180, 183 (2009). “A [COA] may issue . . . only if the

applicant has made a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(B)(2). To make such

a showing, Petitioner “must demonstrate that reasonable jurists

would find the district court’s assessment of the constitutional

claims debatable or wrong,” Tennard v. Dretke, 542 U.S. 274, 282

(2004), or that “the issues presented were adequate to deserve

encouragement to proceed further,” Miller-El v. Cockrell, 537 U.S.

322, 336 (2003)(citations omitted). Petitioner has not made the

requisite showing in these circumstances.

Finally, because Petitioner is not entitled to a certificate

of appealability, he is not entitled to appeal in forma pauperis.

DONE and ORDERED at Fort Myers, Florida, this 18th day

of May, 2020.

Not & AKL.

JGHH E. STEELE

Sq IGOR UNITED STATES DISTRICT JUDGE

Copies:

Petitioner

AUSA